Over the last several days I have spent several hours reading articles and comments posted on the Internet relating to our Supreme Court victory striking down Canada’s laws intended to restrict prostitution, whatever that is. The first thing that had me shaking my head was that when critics of our position point to the negative aspects of sex work, they often completely fail to realize that when something (or related activities) is illegal, those negative aspects arise largely because of the very fact it is not legal. They also fail to point out that women are victims in many conventional workplaces. In the Canadian and American military sexual harassment and rape are almost systemic, as are the cover-ups. Even in offices women are subjected to it. Domestic household servants are trafficked in illegally and sexually abused, yet we don’t outlaw nannies. Many factory workers in Canada are trafficked in illegally and sexually abused, and we don’t close factories. They also fail to point out, and this is critical, that in the future many women who come from advantaged backgrounds, or who have choices, will enter the sex trade. They did not do so before because of fear of the authorities and the negative aspects created by the laws that were struck down. I know a number of such women who earn good livings now, love their work and are free from the sexual harassment, low wages and long hours that are the lot of so many women. If the government does not bring in any laws to replace the ones struck down, and for a change enforces the immigration and other laws, I have no doubt that the people who look into the sex trade will find fewer members who were forced into it and fewer who want to exit.
On Wednesday I distributed an open letter to Mr. Harper asking 6 questions concerning the debate on possible new laws on prostitution. I called it “Prime Minister Harper’s Sexual Orientation” because it is precisely that which might determine his answers to the 6 questions posed in the letter. The questions were: (1) What is a sex act? (2) What is a prostitute or a sex worker? (3) What is a bawdy house? (4) What is an indecent act? (5) What is violence? (6) What is a conservative? He has not responded yet. Nor should he. He should for a change read what the judges of all the courts wrote. Most of those I heard from or whose comments I read or were conveyed to me agree that he must first specify exactly what private behaviours between consenting adults he might want to control. Most of the reaction said that should happen before any “model” is considered. Many noted that if he failed to specify, new laws might not be constitutional. I am glad I sent out the letter, because I was concerned that the debate might proceed without being clear on exactly what was at issue.
I am the Bedford in the Bedford Versus Canada case, in which the Supreme Court struck down Canada’s laws against prostitution once and for all. I am trying here to provide some thinking points to those who think new laws should be added to the criminal code to replace the ones struck down. All recipients may share or publish this article in whole or part. Terri-Jean Bedford.
Prime Minister Harper’s Sexual Orientation
6 Questions for the Prime Minister
By Terri-Jean Bedford
New prostitution laws may be on the way. Much will now depend on the sexual orientation of the Prime Minister: on his orientation towards restricting or not restricting what consenting adults do in private. He must answer questions for a change, questions a real leader would not evade.
Prostitution has always been legal in Canada. Yet, in 2010, in response to a motion I and others filed, the laws to restrict activities around prostitution were struck down by Justice Susan Himel. She said any new laws in the Criminal Code that may be put in their place, not that any are needed, should have some constructive purpose. The Ontario Court of Appeal basically agreed in 2012 and in December 2013 the Supreme Court of Canada unanimously agreed with the Himel decision. They also said the laws were too vague and arbitrary, and any new laws must not be.
All this time Mr. Harper and his then Justice Minister, Mr. Nicholson, insisted the laws were constitutional. Now 15 judges have once and for all put to rest their feckless handling of our constitutional challenge. Since Prime Minister Harper has a majority government and runs a tight ship, he is the one on the spot now. That means him telling you, yes you, what you can and cannot do in private and what happens if you break any new laws he may bring in.
That’s where I come in. I have 6 questions for him. If he evades any of them, or refuses to be specific and clear, he is a coward. I believe his sexual orientation, meaning what he thinks is proper between consenting adults, will guide him.
Question 1: What is a sex act?
Is it a sex act when a man gets an erection and inserts his penis into a woman or another man? Is orgasm an issue here? Is it a sex act if one stimulates a partner’s genitalia with one’s mouth? One’s hand? One’s foot? I won’t ask again whether having an orgasm changes the answer, but consider this an ongoing issue too in this and the other questions. Is it a sex act if a registered masseuse massages a naked man, without touching his genitals, and he has an erection? What if the masseuse is not registered? Say it’s me. Is it a sex act if I give a naked man a massage while he is fully restrained and I don’t touch his genitals? What about a woman? Can I touch her breasts? What type of restraint is legal? What kind of restraints may I use? What if, with his consent, I tickle him until he cries? Is it a sex act if, with his consent, I whip a man who is restrained and naked? Where can I strike him? How hard can I strike him? What implements may I use? What if he gets an erection during the whipping? What if he masturbates afterward in front of me? What if there is another man watching and masturbating during the whipping? Is it a sex act if I buy female clothing for a man and help him into it? What if he gets an erection during this time? Is it a sex act if a man grovels at my feet and kisses my boots while I humiliate him?
I could go on. I think you get the idea.
Question 2: What is a prostitute, or a sex worker?
Is a woman a prostitute or sex worker if she has sexual intercourse with a man in gratitude for a favour, such as home repairs? What if she just gets a promissory note? What if he just tells her she is pretty in return for intercourse? What if a man pays his wife or girlfriend for sex? Is a woman a prostitute or a sex worker if she is compensated to perform oral sex on or stimulation by hand of a man’s penis? What about if he just paid her to hold his hand? What if he pays her and just masturbates in front of her while she verbally humiliates him by calling him a lackey of the Prime Minister? Is a woman a prostitute or a sex worker if she is paid to tie up a man and tickle him? Whip him? Spank him? What if he remains fully dressed? Is a woman a prostitute or sex worker if she is paid to buy female clothing for a man? Is she a prostitute or sex worker if she is compensated for helping him into it? Is a woman a prostitute or sex worker if she is a stripper in a bar where there is no physical contact with the patrons?
I could go on. I think you get the idea.
Question 3: What is a bawdy-house?
Is it a bawdy-house if a woman, almost daily, stays home and has sexual intercourse for money or some other form of payment? What if she just sells oral sex or hand jobs? What if a man pays to just look at her as she washes dishes? Is it a bawdy-house when in this home or place of business there is no genital touching and just bondage and tickling? What if all customers are fully clothed? What about a cross-dressing service? Is it a bawdy-house if the woman sets up a dungeon with bondage and discipline equipment and rents the room to others who are not involved in any financial transaction – such as a married couple? What if she sells tickets to watch her and an employee do S&M sessions? Is an erection by one of the viewers an issue? Is it a bawdy- house if the woman advertises any of the services above and nothing at all happens in the house? Is it a bawdy-house if the woman advertises and delivers the above services for free? Is The House of Commons a bawdy-house if a female Member of Parliament flashes some thigh and an honourable member’s member becomes erect?
I could go on. I think you get the idea.
Question 4: What is an indecent act?
In response to my earlier questions I presume Mr. Harper has already defined and listed what sex acts are, what makes a woman a prostitute or a sex worker and what constitutes a bawdy-house. I presume he was specific and clear and left no room for non-elected officials to make up the rules as they went along. Unclear laws undermine enforcement of the law and may even lead to more crime.
Now let’s have a go at indecency. And let’s be clear about something yet again: this is about adults – consenting adults, in private. Let’s start with a basic question. Under the old laws, indecency was loosely defined as something that violated community standards in terms of harm to the community and how public that something was. Can the Prime Minister be more specific? I can’t. I repeat, I can’t. Me! If anyone knows about acts in private between consenting adults, it is yours truly. Yet, I can’t. Can he? Judge Susan Himel and the Ontario Court of Appeal basically struck down the old laws partially because they were too vague. In the legal services community a cottage industry has grown up of students writing papers on why the laws Judge Himel struck down are so at variance with fundamental justice. So it is important for the Prime Minister to be specific and clear. Oh, and one other little detail. He should tell us why in each case. That means that if he lists something as indecent or obscene, he will tell us what his rationale for this is.
I think you get the idea. I look forward to his lists and explanations.
Question 5: What is violence?
As a dominatrix, I enjoy controlling and punishing men. As a dominatrix I have never been charged with assault or unlawful confinement, despite significant acts of restraining, whipping, spanking, tickling and pinching of clients. When men play tackle football and get injured, is it violence? Is paying to get whipped by me where no injury results more violent or more abhorrent than being blindsided in a legal football tackle by a 300 pound lineman whose job it is to tackle an opponent hard? If so, why? If I put one of the Prime Minister’s lackeys into chains, and tickle him until he cries, is it as violent as one of those wrestling or mixed martial arts shows that are so popular? These are examples of men and women consenting to be injured. So, for the sake of my trade as a dominatrix, Mr. Harper must tell me if anything I do is illegal violence, and why.
Question 6: What is a conservative?
Here’s what I think a “small c” conservative stands for. He believes government should respect the privacy of the citizen. He respects the rights of consenting citizens to privacy in the bedroom or dungeon. He believes that these freedoms should extend to all segments of society. He believes they have the freedom to discuss what they will do there before they get there. He believes that citizens are entitled to have sex before marriage. He believes that they must not be legally required to have that sex for free and can accept money or other payment for it if they wish. He believes government should refrain from restricting citizens to arbitrary moral judgments. He does not lie. He does not evade, but rather answers questions. He takes positions. He is not a coward.
Now to a well-known “large c” Conservative, Prime Minister Stephen Harper. When I look at how he measures up to conservative values in dealing with the current decisions being made on the prostitution laws, I think he comes up short. He says prostitution is bad, yet he is not clear on what he means by prostitution. In any event, who gave him the right to tell you or me how to live our private lives? I think prostitution, whatever that is, is good. I think people should be free to decide this for themselves. I also know that prostitution is going on all over the place under his government, and that often women – get ready for this – are actually asking criminals to protect them from the authorities under the laws the Prime Minister has fought to retain.
Mr. Harper’s handling of this issue to date has been a blow against safety for women and in favour of organized crime. Going forward, he really must define his sexual orientation if he is serious about doing his job.
In various occupations women are subject to violence, intimidation, sexual harassment and even rape. I believe only about 10% of rapes are even reported. Women in the RCMP, Armed Forces and police forces are routinely being sexually harassed. Do you want your daughter in these situations? Do you want them being nursing home orderlies? Do you want them working in sweatshops, or minimum wage service jobs where sexual harassment may be thrown in as an extra? These same women, by the way, are having sex when and with whom they want. They may have sex in sex clubs. They may work in massage parlours. They may be strippers. Yet, when they simply decide to ask for money, at a good rate of pay, for intercourse or some fantasy role play somehow someone’s line has been crossed. That line and those who draw it should be ashamed of themselves. If women chose to sell themselves or men chose to buy sex with them, nobody has any right to tell these consenting adults what they can or cannot do in private; and no clever play on words will make it otherwise.
It has been brought to my attention that police enforcement of our now unconstitutional laws has fallen off dramatically, particularly in Toronto. It appears that the police have only been enforcing the laws against street sex workers, and this may be because the Ontario Appeal Court upheld that one law of the three. It will be interesting to see if they now continue to prevent screening of clients in public. If so, will they use other laws meant to prevent selling things on the street, or will they continue to invoke the laws set to expire in December? I am also curious to see if they will step up investigations of reported rapes, sexual harassment on the job or wife-beating. I hope so.
I have been reading and viewing the Web to see public reaction to the decision. By this I mean how the public responds to the issue of what the federal government should do now. A clear majority says prostitution should not be made illegal. Those who do actually want restrictions on the private behaviour of consenting adults in private advocate the so-called Nordic model, where customers are charged. Those of us who worked to strike down the laws know that this approach drives prostitution underground because the girls do not want to lose business. It is also under-enforced in countries that have adopted it. The judges in the case examined the experiences of other countries and concluded that other laws now in place in Canada address the worst aspects of prostitution. The only argument for making prostitution, whatever that is, illegal, are moral arguments. Such arguments have no place in a free country and those who make them should be ashamed of themselves.
I have been reading many stories in the media where members of the government are quoted or appear in interviews when the decision was released and after. My first reaction is to tell the public that these are the guys who announced they would appeal the initial lower court decision without reading it properly (if at all). Then they appealed the parts of the Ontario Court of Appeal decision (that upheld most of what the lower court ruled) to the Supreme Court, insisting that they still believed the laws were unconstitutional. After a unanimous decision of the Supreme Court, it meant that 15 judges told the government that they were wrong. Are these the guys we are going to trust to bring in new laws? If they really believed the laws were constitutional then they were and are stupid. If they were just saying this to make the issues go away for a while they are are liars. Either way, they cannot be trusted to legislate on this issue. Therefore they should either not bring in new laws, or resign and let others who can be trusted do the job.
Some of you may have seen me say on television that the Prime Minister called and offered to appointment me to the Senate as the government “whip”. I have turned him down because I don’t like to engage in behaviour that upsets the police.
It has now been a few days since the decision has been released. On Saturday December 21st I put up a blog where I asked readers to keep some things in mind as we go forward. Please have a look at that by going to terrijeanbedford.com. Today I want to tell you what I think will happen if the Canadian government lets the laws fall and does not bring in any new laws. First, as Judge Himel ruled from the evidence, there will not be a significant increase in prostitution. This is because men who want to buy sex from women, or smoke marijuana, are already doing so. Massage parlours are all over the place, as are escort services. Secondly, the existing laws are under-enforced, to say the least, anyway. New laws likely would be under-enforced as well. Third, if the so-called Nordic model was brought in (where only clients are charged), the harms the judges found with the current laws would reappear, and those laws would not be enforceable in court. Remember, the countries with the Nordic model don’t have the constitutional protections we have in Canada, but the laws may fall in some of those countries as a result of our case anyway. Fourth, those who say the buying and selling of women for sex is wrong are wrong themselves. First of all, they don’t define sex. Can a man pay for a massage, or to kiss a woman’s feet? I could go on. I think you get the idea. I will have more to say in the new year about how laws must be specific to be enforceable – to say nothing about constitutional – to say nothing about enforceable. A happy holiday season and new year to all.
It was a victory in all respects. I have examined the decision. I have now read many media reports and heard and read a number of commentators. You can also get my early comments that way. I want to add a few things here. In the first place, the fifteen judges have made it very clear that Mr. Harper and his government, and the provinces, must bring in laws that are clear, specific and do not discriminate against or endanger people. Second, if people point to some prostitutes as victims they should realize, as the judges did, that the very laws in place were much of the cause of that: which is why I keep saying that the prime minister is doing what organized crime wants him to do. Third, when people point to other countries, they should first look at the decision of Judge Himel, who had weeks of testimony and cross-examinations of experts about other countries and what their experiences teach us. In other words, as Rosie Dimanno of the Toronto Star said: “Read the damn decision”. Fourth, anyone who says prostitution (assuming their definition is clear) is always bad, is making a moral judgement and is a fool. I say that because we allow people to smoke, drink, overeat, not exercise, and so forth. We also allow promiscuous, anonymous pre-marital sex and fantasy role-play for free. Fifth, let the people who want laws against prostitution tell us how to enforce such laws and whether there are better uses of public resources than to interfere in the private behaviour of consenting adults when those adults are permitted to take precautions. And sixth, all prostitutes are someone’s daughter. My daughter has worked for me and if you want your daughter to be a soldier or be sexually harassed in the RCMP or in an office or to work for the minimum wage while having sex for free I would rather she do what she wanted and not what you wanted. And finally, seventh, if Mr. Harper is really interested in getting tough on crime let him crack down on wife beaters and dads who don’t pay their child support. Have you heard him talk about that? Anyway, enough for today. The debate is beginning and I look forward to being part of it and am so very grateful to my fellow plaintiffs and Professor Young and his legal team, and all the activists who are too numerous to mention. Truly a great day for Canada.
In 2010, after three years of hearings, with 25,000 pages of evidence and cross-examination, the judge ruled completely in our favour in our constitutional challenge to strike down Canada’s laws meant to restrict prostitution, whatever that is. In 2012 the Ontario Court of Appeal upheld most of the lower court’s decision. Hearings at the Supreme Court of Canada were in June 2013. You can look at all the key documents available to the public at the Web site: http://bedfordsafehaveninitiative.com. The final court decision will be released at 9:45 on Friday morning. I will be communicating my reactions as soon as possible after the release of the decision. While it has been a long battle, much lies ahead no matter what is in the decision.
Some do some don’t. Same with waitresses. Same with office cleaners. Same with factory workers. Same with nursing home orderlies. Women all over the place are doing things they might not wish to do, to earn a living. If a woman can make a living in a few hours a week, safely if the prostitution laws remain struck down, having sex rather than work many days a week in hard labour, shouldn’t that be her choice?
No. It is under-enforcement of laws that protect people that is bad for society. For example, weak enforcement of immigration in the workplace has led to sweatshops, illegal farm workers being exploited, illegal nannies, and illegal caregivers for the elderly, recruits for organized crime and so forth. Within each of those situations we see women being treated miserably and sexually abused, why doesn’t the government crack down on that. Why pick on the prostitutes?
I presume you mean the laws that were struck down, but tentatively being kept in place. These laws impact few because they are under-enforced; as the judge who struck them down pointed out. New similar laws will also be disobeyed. But for those who the authorities wish to target, as they did me in the 1990’s, the laws are a tool for the police to impose morality and target individuals. Indeed, the disgusting presence of “morality squads” over the years should make any thinking person sick. I don’t think being a student is a distinguishing factor in this matter. The people can be most effective by communicating their opposition to any attack on our freedoms the way the reaction to the internet snooping laws arose. They can also send money to organizations that are fighting the fight, such as the Sex Professionals of Canada (SPOC – spoc.ca).
A difficult question. Taboos of all types are very uneven. Some people condemn birth control. Some people condemn pre-marital sex. Some people condemn anonymous sex. Some people condemn cross-dressing. Some people condemn homosexual encounters. Some people condemn bondage and consensual and safe torture. They may see these things as degrading. They may see taking money for doing these things as degrading. The current laws leave matters confused. Prostitution is legal, but there is no clear definition of what it is. Public policy and the laws around prostitution were themselves ruled unconstitutional by the judge and we will soon hear from the appeal court on the matter, or will have heard from them by the time you are reading this. However society’s perception, whatever that is, will not be changed by the court’s ruling. When Parliament gets involved the real issues will emerge. It will be like the internet monitoring and minimum sentence bills. There will be blowback from the people and the judges and the discussions the government is desperate to avoid will begin in a big way. Meanwhile, people in private will continue to do what they want because they want to be free. That is what this country stands for and Mr. Harper will once again have to take a stand against freedoms if he wants to take a stand against prostitution. The media and public will pick up on that and it will be historic.